As most are now aware, in an article published on June 6, the Guardian reported that the US National Security Agency is currently collecting the telephone records of millions of users of the telecommunications company Verizon. The following day the press revealed that the NSA had directly accessed information from the systems of technological giants such as Apple, Facebook,and Google. The “Prism” programme allows the NSA to collect material including search history, the content of emails, file transfers and live discussions. Almost simultaneously Google and Facebook denied the existence of the Prism programme, while President Barak Obama has confirmed that the programmes exists.

These disclosures have made headline news worldwide over the past week. An unexpected twist to this story arose this weekend when it was revealed that a 29 year old contractor for Booz Allen Hamilton, a large US based defence contractor and former CIA technical assistant named Edward Snowden was the source of this information and that he has currently based himself in Hong Kong.  By revealing his identity Mr Snowden has exposed himself to potential prosecution in the US. The chairman of the US House of Representatives homeland security subcommittee, Peter King, has already called for Mr Snowden’s extradition and a spokesman for the director of national intelligence has stated that

“Any person who has a security clearance knows that he or she has an obligation to protect classified information and abide by the law.”

Mr Snowden has stated that he came to Hong Kong because “they have a spirited commitment to free speech and the right of political dissent”. But what protections exist in Hong Kong for someone like Snowden? This case presents an opportunity to reflect on the Hong Kong’s current extradition and asylum regimes.

Protection in Hong Kong

As previously discussed, Hong Kong is a Special Administrative Region of China (HKSAR). China resumed sovereignty over Hong Kong in 1997 after almost 150 years of British colonial rule. Under the Hong Kong Basic Law, the HKSAR government has control over immigration matters and the right to develop its own laws and policies. While China has responsibility for foreign relations and defence, Hong Kong operates under different political and legal systems and maintains an independent judiciary and a common law framework.

Hong Kong concluded an extradition agreement with the US just before Hong Kong’s reversion to Chinese sovereignty in 1997. The treaty states that the executive authority of Hong Kong reserves the right to refuse surrender when the requested extradition relates to “the defense, foreign affairs or essential public interest or policy of the PRC”.  Article 3(5) provides that in cases in which extradition is refused on the grounds of its relation to defense, foreign affairs or essential public interest or policy, the requesting Party may ask that the case be submitted to the competent authorities of the requested Party who will consider whether to bring a prosecution. However both Countries have expressed their shared intention that this Article would rarely be invoked.

If the US were to invoke the extradition treaty against Mr Snowden he might rely on two separate, but parallel paths for protection from removal: these include a Refugee Status Determination (RSD) screening mechanism for refugee claimants conducted by UNHCR and a screening mechanism for torture claimants set up by The Hong Kong SAR government in 2004 in order to meet its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The authorities enhanced the CAT screening mechanism in 2009 and adopted legislation governing the scheme in 2012. Despite these developments, the effectiveness, transparency and fairness of the CAT mechanism have been called into question in large part due to its low rate of recognition, which at the last count was 5 recognitions out from approximately 12,000 applicants.

A high percentage of CAT claims in Hong Kong are initiated by a person writing to the Director of Immigration after arrest or when resisting deportation on the grounds that they are at risk of being tortured upon return to a particular country. Torture claims are processed by the Shatin Torture Claim Assessment Section (TCAS). As a matter of policy, the Director of Immigration will not entertain a person’s torture claim until a person has “overstayed” and is therefore unlawfully present in Hong Kong. If you still have a valid visa, your application will not be considered. This policy has been subject to criticism because an individual is effectively forced to commit an immigration offence, rendering them liable to prosecution and detention, before they can make a torture claim.

Although China has ratified the 1951 Refugee Convention and its 1967 Protocol, these instruments have not been extended to Hong Kong and there are no national or municipal laws that provide protection specifically for refugees. While the HKSAR does not to grant asylum in the sense of allowing local integration, refugee claimants are not simply expelled to their countries of origin. A Memorandum of Understanding between the authorities and the UNHCR has allowed the UNHCR to complete refugee status determination of asylum seekers in Hong Kong, independently of the Hong Kong government.

A previous post on the HKRAC blog explained that refugees often have to leave their countries in hurry, with limited means and little or no planning. “Push factors”, such as civil war, torture or repression, are the main driving force behind a refugee’s flight. Asylum seekers often come to Hong Kong as a point of transit, and do not intend to stay. For various reasons, however, they are often forced to remain rather longer than they had originally expected. Sometimes, in desperation, asylum seekers pay agents exorbitant fees without fully knowing where they will eventually end up. Many have not have ever heard about Hong Kong before arriving.

The United Nations High Commissioner for Refugees (UNHCR) Sub-Office in Hong Kong currently conducts RSD for persons claiming asylum. However, the UNHCR, which operates on a limited budget, assumes this role because the HKSAR has not accepted its own responsibilities. UNHCR’s RSD process is fraught with procedural problems. For example, it lacks an independent appeals mechanism and the HKSAR courts cannot judicially review UNHCR’s decisions.

The 1951 Convention relating to the Status of Refugees defines a refugee as:

Any person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/her nationality and is unable, or owing to such fear, is unwilling to avail himself/herself of the protection of that country

If Mr Snowden were to apply for asylum before the UNHCR in Hong Kong the Director of Immigration would likely follow established practice and afford him temporary refuge until the UNHCR has completed a determination of his claim. This is in keeping with the principle of non-refoulement as reflected in Article 33(1) of the Refugee Convention which prohibits the expulsion or return of ‘a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’.

While the Convention has not been extended to Hong Kong and Article 33 had no direct application, the Hong Kong Court of Final Appeal has held – in a landmark judgment in C,KMF and BF v Director of Immigration and Secretary for Security (FACV Nos. 18/19/20 2011) handed down in March 2013 –that high standards of fairness are required in this context since the determination of the claim is one of momentous importance to the individual concerned and involves fundamental human rights. This decision could result in the foundation of a unified, government-led protection screening mechanism implemented in Hong Kong. In another judgment handed down in December 2012, the court confirmed that Hong Kong also has a duty to refrain from sending individuals to places where they might face cruel, inhuman, and degrading treatment or punishment – a concept that is much broader than “torture”. The Hong Kong authorities have not yet announced how they will respond to these decisions which require enhanced protection for refugees and others who fear serious harm if repatriated. The system is, as such, currently in a state of flux.

One of the key issues with the current dual system is the length of time it takes to process claims. For asylum seekers, many of whom have undergone terrible trauma before they arrived in Hong Kong, it means years of living in uncertainty. In a joint position paper produced in 2009 and recently repeated in February 2013,the Hong Kong Law Society and Bar Association have called on the Hong Kong SAR Administration to put in place a comprehensive legislative framework to ensure high standards of fairness when screening claimants under CAT and determining refugee status. HKRAC and other NGOs working on behalf of refugees in Hong Kong have long advocated for the creation of a single, government-led unified mechanism to process both refugee status determination and torture claims. It is unknown at present what role the UNHCR will play in any future system. Given that the judgment only deals with the issue of non-refoulement and not resettlement (and other, associated rights) the UNHCR will probably need to remain in some capacity.

Fleeing persecution is not a crime. The right of everyone to seek and to enjoy in other countries asylum from persecution is guaranteed in Article 14 of the 1948 Universal Declaration of Human Rights. Many people in Hong Kong have family members, friends and loved ones who indeed, at one point in their lives, were refugees, coming from mainland China in the 1950s. Hong Kong should have solidarity with refugees, but unfortunately, they are frequently met with fear, mistrust or outright rejection. Because myths propagate hostilities and discrimination, ending them is all the more crucial for achieving a more just and tolerant society. While we cannot know what step Edward Snowdon will take next, what his case does highlight is the fact that any person, from any part of the world, can find themselves seeking refuge from an oppressive government in the blink of an eye.

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Written by Sonya Donnelly

Sonya Donnelly is currently working with UNHCR in Somalia. She has written extensively on human rights issues and co-wrote a legal text for first year barristers, The Devil’s Handbook. All posts are written in Sonya’s personal capacity.